Posts By: Jason Resnick
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Second Card Check Petition Certified by ALRB
Last week, an agricultural employer in Fallbrook, California, received a Majority Support Petition (MSP) from the United Farm Workers (UFW). The UFW has now been certified as the collective bargaining representative of the agricultural employees of Olive Hill Greenhouses, Inc. This is the second successful filing of a Majority Support Petition under the ALRB’s new “card check law” (AB…
DOL Releases Final Rule on Independent Contractors
On January 9, 2024, the U.S. Department of Labor (DOL) announced the issuance of a final rule, which revises the Department’s guidance on how to analyze who is an employee or independent contractor under the Fair Labor Standards Act (FLSA). This new regulation overturns the 2021 rule and introduces a six-factor test to determine the nature of the worker-employer relationship based on "economic…
Update on Interview Waiver for Nonimmigrant Visa Applicants
The U.S. Department of State has announced new categories of nonimmigrant visa applicants who can waive the in-person interview requirement. Starting from January 1, 2024, first time H-2 visa applicants and other nonimmigrant visa applicants who have previously received a nonimmigrant visa in any classification (except B visa) can apply for an interview waiver if they meet certain legal and…
Agriculture in the Wake of the Hot Labor Summer: Will Farmers Feel the Heat?
In the ever-evolving realm of agriculture, one cannot help but be reminded of the Chinese proverb: "May you live in interesting times." These are, indeed, interesting times for the agricultural industry, where the intersection of labor organizing, technological innovation and legislative changes paints a complex and intriguing picture. As we bask in the glow of the "Hot Labor Summer," a…
Update on H-2A Wage Rates (AEWRs) Effective January 1, 2024
The U.S. Department of Labor has recently published its notice announcing the updated Adverse Effect Wage Rates (AEWRs) that will be effective from January 1, 2024. The AEWR is the minimum hourly wage rate that the DOL has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment to prevent adverse effects on the wages and working conditions of…
DLSE Issues FAQ On California’s Revised Paid Sick Leave Law
As of January 1, 2024, significant amendments to California's Paid Sick Leave Law will come into effect, impacting employers and employees across the state. The Department of Industrial Relations (DIR) has released a comprehensive FAQ regarding the amendments to the state's Paid Sick Leave Law, also known as the Healthy Workplaces, Healthy Families Act. Main Changes and Implementation…
Webinar: USDA to Announce H-2A Grant Program Know Your Rights Partner
The U.S. Department of Agriculture will host a webinar on December 21st at 12:00 PM PT to announce the Know Your Rights and Resources (KYRR) Partner for the Farm Labor Stabilization and Protection (FLSP) Pilot Program. The U.S. Department of Agriculture (USDA) is making up to $65,000,000 available in grant funding for agricultural employers via the Farm Labor Stabilization and Protection…
WG Files Amicus Brief in NY Card Check Case
Western Growers filed an amicus brief in the United States District Court, Western District of New York, in New York State Vegetable Growers Association, Inc. v. Hochul. The New York State Vegetable Growers Association (“NYSVGA”) and five family-owned farms filed the lawsuit, challenging the Farm Laborers Fair Labor Practices Act (“FLFLPA” or the “Act”) which amended the State…
Full Disclosure: Arbitration Agreement Pitfalls in H-2A Visa Employment
In a significant case involving the H-2A visa program, a California appellate court ruled that an arbitration agreement in the H-2A job order was unlawful and unenforceable because it was not disclosed prior to the employee arriving to the employer’s facilities in the U.S. Under the H-2A visa program, employers must disclose all employment terms in the H-2A job order, including material…
Farm Labor Survey Previews Likely H-2A Wage Increases for 2024
Last week, the U.S. Department of Agriculture released data from its annual farm wages report. USDA’s Farm Labor Survey is used to calculate the 2024 Adverse Effect Wage Rate (AEWR), which determines the minimum wages for H-2A workers in each state. California employers can expect to see the AEWR increase from $18.65 per hour to $19.75 per hour, a 5.9% bump over the 2023 AEWR. The hourly rate…
Western Growers Submits Comments on Proposed Rules
As previously discussed, Western Growers has actively engaged in advocacy efforts by submitting comments on three proposed rules by Department of Labor, Department of Homeland Security and OSHA, respectively. Each proposed rule has profound implications for the specialty crop industry. Below is a summary of, and link to, each comment letter submitted. Department of Labor (DOL) – Comments re…
First Union Certification Under AB 113 Sparks Controversy
The California Agricultural Labor Relations Board has certified the first majority support petition (card check) filed by the UFW at DMB Packing, a tomato operation in Newman, CA. The certification, however, is not without controversy. However, the slimmest majority, barely 51% of the company's 297 workers, allegedly voted in favor of union representation. The law firm of Barsamian &…
USCIS To Move H-2A Processing From California to Texas
Beginning Nov. 1, 2023, H-2A employers and agents will be required to file Form I-129 petitions (petition for nonimmigrant visas) with the Texas Service Center (TSC). Previously, H-2A Form I-129 petitions were filed at the California Service Center (CSC) in Laguna Niguel, located in Orange County, California. In addition to H-2A petitions, H-2B-related Form I-129 petitions as well as several…
California Health Care Employers Face New Minimum Wage Law
Governor Newsom recently signed SB 525, a law set to bring significant changes to the health care industry in California. The law, effective from June 1, 2024, introduces a higher minimum wage for a wide range of health care employees and grants them the right to enforce these wage requirements through legal action. SB 525 casts a wide net, encompassing various health care employees and…
Ninth Circuit Rules Pandemic Layoffs Trigger Payment of Final Wages
The Ninth Circuit recently held that when an employer conducts a temporary layoff with no specific return date in the normal pay period, the temporary layoff is a "discharge" under the prompt payment provisions of the California Labor Code, requiring the employer to pay all earned and unpaid wages.[1] The decision has significant implications for California employers. As the pandemic hit in…
Colorado Proposes New Rules to Clarify Equal Pay Law
The Colorado Department of Labor and Employment is introducing new Equal Pay Transparency (EPT) Rules to clarify the state's Ensure Equal Pay for Equal Work Act, set to take effect on January 1, 2024. A public hearing for these proposed rules is scheduled for October 30, 2023, with their implementation also planned for January 1, 2024. Here are the key points from the proposed rules: …
New Forms I-9 and I-129 Now Available
The United States Citizenship and Immigration Services (USCIS) has updated the Form I-9 and Form I-129. New Form I-9 (Effective August 1, 2023): Starting on October 31, 2023, the USCIS will implement the use of a new version of Form I-9, dated August 1, 2023. It is essential for all employers to ensure that they are using the correct edition of Form I-9 to avoid potential penalties. The…
ALRB Regulations Subcommittee Issues Proposed Regulations to Implement Card Check
On September 27, 2023, the Agricultural Labor Relations Board’s Regulations Subcommittee published a report regarding proposed regulations to implement the amendments to the Agricultural Labor Relations Act enacted by Assembly Bill No. 113, which took effect on May 15, 2023. Specifically, the subcommittee’s report includes proposals designed to implement the new “majority support…
California Enacts Groundbreaking Workplace Violence Prevention Safety Requirements
On September 30, 2023, California Governor Newsom signed SB 553, a new workplace violence law. The new law will apply to almost all California employers, with few exceptions. Starting July 1, 2024, covered employers in California are mandated to: Develop and implement a workplace violence prevention plan that meets the law’s specific standards; Maintain a violent incident log to…
USDA Launches New H-2A Grant Program
The USDA Farm Labor Stabilization and Protection Pilot Program (FLSP) will award up to $65 million in American Rescue Plan Act funding to provide support for agricultural employers in implementing robust labor standards to promote a safe, healthy work environment for both U.S. workers and workers hired from northern Central American countries under the H-2A visa program. The program is funded by…